I did not encounter Dr. Halley's 1996 paper during my research for my own DADT
book, and I do wish that I had. After Randy Shilts'sConduct Unbecoming (1993) and my book in 1997, this is the most
comprehensive treatment of the military ban in trade book format to appear
(but not until 1999).

In her Introduction, Dr. Halley states her purpose as to refute the
popular civilian belief that the 1993 "Don't Ask, Don't Tell"
policy reasonably solves the "problem" of gays in the military.
"The new military policy is much, much, much worse than its
predecessor." Indeed, in a practical way, "gay discharges" are
greatly increased, although this might be partly the result of politicization
rather than of the policy itself. The general public may indeed have the
impression that the venial hypocrisy of the policy is the simplest way to
deal with what, in the practical world, may come across as a political
annoyance. I'll add here myself that it cannot be acceptable to go back to
"asking" and I'll come back to this.

And this gets me to the difficulties in writing about this topic in a
manner that will impact upon the public and be recognizable enough in the
academic and commercial world to get published and circulated at all.
(Remember, Dirk Selland was rebuffed by literary
agents who claimed that most people had budget room for only one such book
"on their home coffee table.") Indeed, Dr. Halley calls her book a
"Reader's Guide" but what she has written is something like an
honor's term paper for a philosophy course, with layers of political
speculation and legal analysis on top. For the "average reader" I'm
not sure it works.

What she really wants to do is to impress upon the public that the
government has "gotten away" with a very dangerous rhetorical
device, the use of "presumption" and "rebuttable
presumption" to bemuse the whole status-conduct distinction.
(Essentially, the military claims that the unmeasurable
threat of "homosexual conduct" threatens unit cohesion and good
order and discipline, rather than repeating its old instance that, on its
face, "homosexuality (understood as homosexual orientation) is
incompatible with military service.")

Along the way, she makes many detailed observations, many of them stated
in a startling way. For example, right after Clinton took office in 1993,
Clinton issued an interim order suspending "asking" at enlistment
but placing on upaid reserve status anyone who
"told" (this caught Tracy Thorne almost immediately after his
"Nightline" appearances. Later, Clinton
seemed a bit thick in grasping just how determined Pentagon officials were in
trying to keep all gays out. Secretary of Defense Les Aspin
("conduct" and "radar screen" were his buzzwords) was
somewhat of a go-between, and he wound up, in July 1993, drafting a policy
for Clinton to announce which was
much more punitive of "abstract" speech than Clinton
understood it to be. Furthermore, as the law was passed in 1993,
"asking" wasn't nrecessarily stopped; a
(Republican administration's) secretary of defense may resume asking anytime
he wishes.

Halley is very concerned with showing the evolution of the
"propensity" device as a judicial and legal canard and "long
term fix." Quite appropriately, she presents the significance of Bowers
v. Hardwick (1986), in which the majority refused to consider a
substantive due process argument and went on to focus upon "homosexual
sodomy" as both inclination and conduct that had always been held as
antithetical to Western civilization (thus giving legal impetus to the idea
of linking status and conduct through "propsensity").
This, she believes, allowed Justice Department lawyers to develop the
"propensity" notion in defending the Old Ban, which on its face
banned anyone who enjoyed homosexual thoughts (that is, anyone of homosexual
"status" or with even "unmanifested
homosexual orientation") from the military if "found out."
"Propensity" has both an "actuarial" (following the auto
or casualty insurance model) and "pyschometric"
paradigm, which DOJ cleverly used particularly in the Steffan
v. Aspin case (complicated by the fact that Steffan refused during discovery to answer any questions
about sexual conduct.) It is interesting that Steffan'sHonor Bound
book, on p. 154 of the original hardcover, refers to the Naval Academy
Performance Manual (in 1987) as characterizing homosexuality as a "trait
undesrarble in commissioned officers."

Halley also looks through 1993 debate materials for the evolution of this
"propensity" tensor. About the only place she clearly finds it is
in a July 1993 speech by Senator Sam Nunn. (But apparently Norman Schwarzkopf
hinted at this concept in his terstimony in Nunn's
hearings.) The rest of the material goes back to the DOJ relying upon Hardwick.
What strikes me, however, is that Graham Claytor
had, in 1981, mentioned "propensity" in his rewrite of the
"Old Policy" to become uniform for all services before the start of
the Reagan administration. She mentions this, but to me this seems like a
sufficient explanation of the original source of the device.

All of this was very interesting to me because I had, in my own "White
House letter" emphasized (as had Rand) that
the military must not try to punish conduct it cannot prove. What
"presumption" does is build a rhetorical bridge from conduct back
to status so that, for administrative purposes, they may be considered
equivalent. Did my letter make them just that much more determined to do
this?

She also discusses several other important issues: the "guidelines
clause" (or "no enforceable rights") clause that seems to deny
separated servicemembers even procedural due
process; the "reasonable person" standard in developing
"credible information" that a statement indicates a conduct
propensity (this amounts to heterosexism, or "heteronormativity"),
and the near impossibility in practice of "rebuttal" (the
"Seven Exhibits" which include, curiosly,
the Eagle Scout (or Boy Scout) defense.

All of this brings us to the question for the general reader, the question
any literary agent or editor looks at: "Who cares?" Once, attorney
Allen Moore of Covington and
Burling (Paul Thomasson's attorney) once stated (at
a DC Gaylaw gathering) that, with the deceptive
logic underneath it, the military ban was one of the most dangerous examples
of the power of the state. Halley makes her case for this, very briefly, in
her conclusion. The ban, she believes, is probably part of a societal
"protectionism" for heterosexuality, not so much for the benefit of
heterosexuals (for the ban actually ensnares heterosexuals, especially women,
in uniform, too), but to leave the world with less reason to question
conventional heterosexuality. As for the general impact upon civilians, she
writes: "If the courts do say that the policy is constitutionally sound,
and they say so without any proviso that judicial deference to military
policy motivates them, then they will have approved a policy as a model for
official anti-gay discrimination elsewhere." Later she concedes that
this is "many contingencies" away. I think she wanted to go into
this in much more detail, but was not allowed to because she was publishing
for other academic and official interests. I, working on my own, do so.

The book has a detailed bibliography, with the most comprehensive listing
of military cases I have seen in print. The book bibliography, however, omits
me, the SLDN Annual Reports and Survival Guide, Wojcik's
paper, ChaiFeldblum's
Devlin Paper, and even the Rand Report.